Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2005-464

MAY
TERM, 2006

Randy Francis } APPEALED
FROM:

}

}

v. } Orleans
Superior Court

}

Robert Hofmann }

} DOCKET
NO. 191-7-05 OsCv

Trial Judge:
Amy M. Davenport

In
the above-entitled cause, the Clerk will enter:

Petitioner
appeals the district court=s
denial of his petition for a writ of habeas corpus, in which he challenges his
extradition to Kentucky. We affirm.

The State of
Kentucky seeks petitioner=s
extradition to stand trial on two felony charges. On July 1, 2005, petitioner
filed a habeas petition alleging that he was not lawfully charged by indictment
because the facts supporting the indictment were Aso
egregiously insufficient as to violate substantive due process.@ Approximately two weeks
later, petitioner filed an amended petition alleging that he was not lawfully
charged by indictment because the grand jury foreman who signed the indictment
was a convicted felon and therefore ineligible for jury service. In support of
his amended petition, petitioner attached an article from a newspaper website
stating that the grand jury foreman had been replaced while officials
investigated his failure to report that he had been convicted of a felony
twenty-seven years earlier. Following a hearing, the district court refused to
dismiss the extradition request, stating that A[i]nquiry
into the legitimacy of the foreperson=s
qualifications is an impermissible examination of the demanding state=s judicial proceedings.@

On appeal,
petitioner argues that because the indictment supporting the request for
extradition was fraudulently signed by a grand jury foreman who was ineligible
for jury service, petitioner was not Alawfully
charged@ by indictment,
as required by 13 V.S.A. '
4943(b)(3). We find this argument unavailing. Vermont law requires that a
request for extradition be accompanied by either an information and affidavit
or an indictment charging a person with having committed a crime in the
demanding state. Id. '
4943(a). An extradition warrant shall not be issued unless the documents
presented by the demanding state show, in relevant part, that the person Ais lawfully charged by
indictment . . . with having committed a crime under the laws of that state.@Id. ' 4943(b)(3). Because
interstate extradition is a summary procedure that imposes only a minimal
burden on the demanding state, In re Ladd, 157 Vt. 270, 272 (1991); In
re Everett, 139 Vt. 317, 319 (1981), A[t]he
scope of a habeas corpus review is limited to an examination of whether the
extradition documents satisfy the Act=s
demands,@Deyo v.
Snelling, 139 Vt. 341, 343 (1981). See Ladd, 157 Vt. at 272
(emphasizing that limited function in reviewing extradition request is Ato ensure the validity of
the requisition warrant and procedural compliance with our extradition statute@); In re Moskaluk,
156 Vt. 294, 297 (1991) (noting that Aour
function in reviewing the legality of extradition pursuant to a governor=s warrant is essentially to
determine the correctness of the requisition papers and the identity of the
person arrested@).
Therefore, in reviewing a request for extradition Awe will not look behind [the extradition]
documents or examine the merits of the charges against petitioner.@Ladd, 157 Vt. at
272; see, e.g., Moskaluk, 156 Vt. at 297 (refusing to look behind
Louisiana affidavit to determine whether information contained therein was
lawfully obtained); Deyo, 139 Vt. at 343 (stating that inquiry into
extradition request Ashould
not include an examination of the demanding state=s
laws or judicial proceedings@).

Here, in
arguing that the indictment was unlawful, petitioner cites Kentucky cases
granting a new trial to a criminal defendant convicted by a jury that included
a convicted felon, see Anderson v. Commonwealth, 107 S.W.3d 193, 194
(Ky. 2003), and dismissing an indictment that was issued by a grand jury
empaneled by three court designees rather than a circuit court judge, see Nelson
v. Commonwealth, 841 S.W.2d 628, 631 (Ky. 1992). According to petitioner, Abecause possibly only nine
members [of the grand jury] voted to indict [petitioner] and the illegitimate
foreman=s vote counted
among them,@ it is Aimpossible to conclude that
the indictment complied with Kentucky law.@
Further, in petitioner=s
view, because the foreperson alone attested to the veracity of the indictment,
his fraudulent signature renders the indictment illegal.

Petitioner
fails to cite any authority to support his presumption that the foreperson=s failure to disclose
background information on juror qualification forms rendered the indictment
fraudulent. Notwithstanding his arguments, the requisition documents indicate
on their face that petitioner was lawfully charged by indictment, and this case
presents a good example of why extradition review should be limited to such.
The newspaper article that petitioner relies on raises the question of whether
the foreperson=s civil
rights had been restored in Oklahoma over twenty-five years earlier. Thus, his
jury disqualification is at least open to question. See Ky. Rev. Stat. Ann. ' 29A.080(2)(e) (prospective
juror is disqualified to serve if juror is convicted felon who has not been pardoned
or received restoration of civil rights by authorized person in jurisdiction
where convicted). Even assuming that the foreperson was not qualified to sit
on the grand jury, there is no indication that less than nine of its members
concurred with the indictment, see Ky. Rev. Stat. Ann. ' 29A.200 (AA
grand jury shall consist of twelve (12) persons, nine (9) of whom concurring
may find an indictment.@),
and thus no assurance that Kentucky law would require vacating the indictment,
see Rice v. Commonwealth, 387 S.W.2d 4, 5 (Ky. 1965) (declining to
overturn conviction based on claim that two jurors were ineligible to serve, given
that grand jury proceeding is not a trial and, even if two jurors were
ineligible, only nine of twelve jurors were required to issue indictment). In
short, the district court was not required to examine particular facts
concerning the investigation of the foreperson or to construe potentially
relevant out-of-state law to determine whether petitioner was lawfully charged
by indictment. Those issues are properly left for the Kentucky courts to
decide if petitioner chooses to pursue them. Cf. Everett, 139 Vt. at
319 (concluding that substantive issue petitioner sought to raise in Vermont
habeas proceeding could be litigated in New Hampshire court in trial on merits
following extradition). Because the extradition documents were facially valid,
the court properly rejected petitioner=s
request for an order denying extradition.